Stopping a Probate Application
There are lots of reasons why you may wish to stop probate from issued. To do this there is a legal procedure called a Caveat. This effectively puts a stop on probate for a period of some 6 months, unless a warning is served or court proceedings are issued ( see below )
Investigating a potential claim against an estate takes time and therefore the issue of a caveat gives breathing space and time for investigations to be undertaken.
The Reasons for Entering a Caveat
There are a variety of legal reasons why you may wish to enter a caveat, these maybe summarised below:-
You Believe that the Wrong Will is Being Probated
Very often there is uncertainty as to what was the deceased’s final will. Relatives may have been told by the deceased that a later will was made but simply cant find it. Issuing a caveat allows investigations to be undertaken to find the most latest will.
There is an Issue with the Will itself
You may have been shown a copy of the will, but there maybe something that simply doesn’t fit right, it might be a concern about the signature or whether it was witnessed correctly.
You simply want to see a Copy of the Will
Given that wills become a public document after probate has been issued, it is very surprising that many executors simply refuse to prove a copy of a will to a relative. Issuing a caveat is often sufficient for a will to be disclosed. If a threat of a caveat is made this is sufficient very often for the will to be disclosed.
There is a Problem with the Executor
Very often disputes can arise relating to the suitability of an Executor. For example, you have concerns relate to their conduct in the will itself or believe the person maybe simply incapable of administering the estate. if you are thinking of applying to the court to have an executor removed
If there is No Will someone is applying for probate shouldn’t be
If the deceased has died intestate there is set order of entitlement that outlines who can apply for probate. Sometimes we see people applying for probate who have no legal basis and therefore a caveat stops the probate.
An Executor who has not be Consulted
If you are named in a will as an executor, you have a legal right to be involved in the probate process and application. If a co-executor is refusing to co-operate then issuing a caveat will enable discussions with the other executor as to whether both executors apply, or the other executor renounes or is power reserved.
The Will is not Valid as the person got Married
A marriage and or a civil partnership revokes a will, so if someone got married after making a will it will revoke it.
You believe the Will is Invalid as the Testator didn’t have capacity
If you believe that the will is invalid as the testator ( the person making the will ) didn’t have capacity this can take time to investigate as frequently earlier wills will need to be obtained, and medical evidence gathered. This all takes time. Issuing a caveat gives time for those investigations to be undertaken.
Obtaining legal advice prior to obtaining a caveat
It is crucial that legal advice be obtained prior to applying for a caveat. The reason for this is that if you are unhappy with a will and want to challenge it, time really is of the essence and therefore getting help immediately is so important. We frequently advise clients on caveats and have considerable experience in this area.
How long does a caveat last for ?
A caveat lasts for 6 months and can be renewed at the end of this period.
Challenging a Caveat
If someone believes that a caveat has been entered unreasonably, then something called a Warning to the Caveat maybe entered. This essentially, gives the person entering the caveat, notice that the specific reasons for the caveat been entered must be made with 14 days, by the filing of a legal document known as an appearance. If no replying is worth coming then the caveat cane be removed..
Frequently Asked Questions about Caveats
Is there a way to search whether a Caveat has been issued ?
Only the probate registry keeps a record of caveats being issued, and there isn’t a database you can search to see if a caveat has been issued unfortunately.
Will the other side know that a caveat has been issued?
Your opponent will not be sent anything by the probate registry telling them that a caveat has been issued. There is of course nothing wrong with advising the other side you have entered a caveat. The Court will send a letter confirming the issue of the Caveat.
How Do I find out that a Caveat has been issued?
Typically the first thing you will know about a Caveat (unless told) is when you get a letter from the probate registry advising that your application cannot continue.
How Quickly does it take to issue a Caveat?
As there is a procedure for a caveat to be issued online it is now very quick, so that must caveats are issued in a matter of days.
Can you Issue a Caveat After Probate has been Granted?
Can you issue a Caveat against letters of administration?
Yes. A Caveat can be issued whether there is will or not.
Is it possible to remove a caveat ?
Yes you can remove a caveat by issuing a warning. This will require a legal document to be drafted and sealed by the probate registry. The warning is then served on the person entering the caveat who has a period of 14 days formerly in a document called an appearance.
Is there any time limit to when you can keep issuing a caveat?
No. You can renew a caveat as many times as you wish.
If I enter an Appearance do I have attend at court?
No. An Appearance is simply the name given to the legal document in which a reply to the warning is filed.